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Because religion and the family have been so intertwined, many religions have been profoundly concerned about redefinition of the family unit, and the more socially conservative they are, the more concerned they are. Will a normatively established “redefined family”—single parent by choice, LGBT couple, communal, polygamous, or other arrangements—be inclined to perpetuate the beliefs of the religion? Or for that matter, any particular religion? By extension to society at large, will a “redefined family” adequately socialize, transmit positive social values, meet the needs, and demonstrate its ability to perpetuate society itself? To pass along time-honored social values, the family unit—however defined—needs to socialize children accordingly.

Love or hate it, agree or disagree with it, this has been the core concern at work from both social and religious standpoints: How well will a “redefined family” perpetuate itself in social and biological terms, and how well will it perpetuate the institutions that depend on it? In the case of gay and lesbian couples, due to the Supreme Court ruling in Obergefell, the point is now officially moot, as it’s been for several years while various states allowed gay marriage. Agree or disagree, the legal decision has been made regardless. Same-sex marriage is a matter of US law now. So it is incumbent upon us to carry forward and cooperate for the good of society as a whole. Yet we have a fair amount of work cut out for us—much the same as we already had before the gay marriage debate, though with the distinct possibility of new complications coming in.

What are some of these complications? Family scholars have cautioned since the ‘70s that tinkering with marriage and family structure could be problematic. For instance, Carroll and Dollahite (2008) (link not currently available) cautioned that alternative family structures may create “ambiguous fatherhood” (uncertain or non-existing paternal relationships) and primarily serve the interests of adults rather than children in families. More recently, in a study that quickly became controversial a few years ago, and for which a link also isn’t currently available, Mark Regnerus (2012) found “suboptimal outcomes” in the same-sex-parented children in his sample, relative to those in opposite-sex households. Yet, as Regnerus himself noted (and as a fair number of the study’s critics presumably didn’t), causality cannot be inferred, so that the suboptimal outcomes noted could be a byproduct of other factors—for instance, whether the same-sex parents in question had previously been divorced from their opposite-sex spouses before forming the new family unit. So though the proverbial jury remains out on the same-sex family, the outlook suggests the road ahead may not necessarily be smooth—just as it has never been for any family.

Indiana, then led by Gov. Mike Pence, saw an uproar in March 2015 over its proposed religious freedom law, which allowed businesses to deny service on the basis of the owners’ freedom of conscience. The statute was written to avoid the legally forced provision of business services. But critics charged that the law provided a “blank check” allowing discrimination for virtually any reason. Stickers like these cropped up on the doors and windows of many of the state’s businesses, evidently as a protest to the law. Some observers also concluded that the free market had generated its own solution—let businesses market themselves as all-inclusive. In early April 2015, the law was revised and assurance was given that its provisions would not be used against the LGBT community. Image from washingtonpost.com.

Moreover, Justice Kennedy in the Obergefell ruling acknowledges a common theme that has persisted in family scholarship: LGBT relationships, particularly male-male, tend to be notoriously unstable. Where does this come from? Research in the 1990s and early 2000s on small sample sizes of same-sex families. Anecdotal evidence can support this—I have seen some of my own male gay friends break up with their partners. Still, the perception persists. Along the same lines, research in that same time frame also suggested that many lesbian couples are highly committed at the opposite end of the spectrum, which could in theory produce a statistical wash-out when comparing the stability of same-sex and opposite-sex couples.

However, research since the 1990s and 2000s tells rather different stories. As noted, the male-male instability thesis is based on earlier family research studies from the 1990s and 2000s. There weren’t nearly as many same-sex unions observed then, so there was a much smaller sample to choose from. The few male-male relationships observed at the time that this research was done were apparently unstable, and the researchers brought along with them some core assumptions about male gender socialization (men were “lookers” with a hard time committing, while women were much more oriented towards commitment, etc.) that tended to lead to those conclusions.

So as more research has been done, AND as more same-sex families have been created and studied alike, patterns that family researchers have observed seem to have shifted. A study in 2012 still found a somewhat higher rate of dissolution for male-male couples, though not dramatically higher than other family types. See  Charles Lau's 2012 study, “The Stability of Same-Sex Cohabitation, Different-Sex Cohabitation, and Marriage.”. However, in another study for which a link isn’t currently available, Manning et. al. (2014) provide a good overview of research on heterosexual and homosexual relationship stability rates. They conclude that despite previous localized research in various areas showing higher rates of instability for homosexual couples, they did not find a statistically significant difference when considering homosexual couples as a whole.

Even further, much more recent research—particularly since the 2015 Obergefell Supreme Court ruling—indicates yet more change in the patterns noted. For instance, this 2019 meta-study by Eric Ketcham and Neil Bennett, for instance ( "Comparative Couple Stability: Same-sex and Male-female Unions in the United States"), indicates results are mixed, even to the point where much of the literature actually indicates a slightly though not dramatically lower degree of stability in female-female relationships. That’s definitely unexpected in light of the decades-earlier research, and yet other studies question that observation. In any case, the current picture of same-sex-relationship stability is muddled and it’s likely in any case that family stability depends on a nexus of interrelated factors rather than family type being a sole determining cause of stability. Overall, the earliest research conclusions of male-male instability and female-female hyperstability have not held up over the years as further research has been done on same-sex relationships.

A war of words and images erupted over the issue of religious freedom, particularly in the wake of several controversial clauses in Indiana’s state law passed in 2015 to ostensibly protect that right. On one side, traditional believers worried about persecution for their beliefs; on the other, believers were accused of practicing favoritism and hypocrisy, using religion to discriminate, and promoting bigotry. As the discourse grows increasingly bitter, the opportunity for dialogue and mutual understanding diminishes accordingly. Images from godfatherpolitics.com and aclu-nj.org.

Another consideration quickly rose to the forefront during the first decade of the 21st century, leading up to the Obergefell decision: How to address religious groups that define homosexuality as sinful and discourage it, whether as behavior only (as in the view of the faith tradition to which I belong) or also as orientation itself (as in a number of traditional Christian denominations). Would they face recrimination for their convictions? Would they be forced—whether via court decision, the denial of tax-free status, or popular demand from protesters outside the front door and/or using social media—to accommodate gay marriage despite their own consciences and collective beliefs? Though some pooh-pooh such concerns as unrealistic, others point to the infamous lawsuits over refusals to bake a gay-wedding cake or take gay-marriage wedding photographs as potential precedents for popular and/or government incursion upon the rights of belief and worship. A heated protest march on the Los Angeles Temple of The Church of Jesus Christ of Latter-day Saints in 2008 after the controversial passage of Proposition 8 added to conservative-religious fears about the potential for compulsion of conscience.

Fortunately, the Obergefell ruling did not ignore freedom of conscience. (This is a term I consciously choose to distinguish from the more controversial “religious freedom,” which some LGBT activists see as code for “freedom to discriminate” but is not my meaning at all. More on this in just a bit.) As Berg (2015) points out, underscored by Rausch (2015) and Jordan (2015), along with Justice Kennedy’s opinion in his ruling, the necessity of protecting freedom of conscience was both considered and established. As a result, it seems likely that short-term protection for some religious objections is protected. This idea was further upheld in the more recent Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court ruling (June 4, 2018), though due to some particulars of the case, the ruling was quite narrow and is unlikely to set any precedent on this issue. So the long-term picture for freedom of conscience is still rather unclear, however, which is why some religious groups remain concerned about it despite all assurances.

In any case, the need for mutual understanding and working through problems still remains. The Kim Davis episode mere weeks after Obergefell, for instance, became an unfortunate representation of the issue of “religious freedom,” and may well have contributed to equating that label with ability to discriminate in the minds of some activists. Davis, the Rowan County (Kentucky) clerk, no longer wanted her name on licenses—as state law then required—as an implicit endorsement of same-sex marriage, which she opposed. Though the law at the time required her to allow this, she was willing to be imprisoned rather than comply. Upon release, she then altered the licenses that offended her so that they no longer bore her name.

Davis faced criticism from even those who could have been expected to support her, including even the infamous Westboro Baptist Church. As a non-Baptist and previous divorcee, Davis was a sinner and worthy only of condemnation in the eyes of the WBC. (As before, add her to the long list of people they hate, too.) Many others from a more legal standpoint noted her position as an elected public official and refused to excuse her from following the law due to conscientious objection. Nonetheless, Kentucky state law has since been changed so that the county clerk’s name no longer appears on marriage licenses. But Davis’ indirect association with the cause of “religious freedom” has remained, and tainted the label as well.

An unintentional culture war icon. Image from Max Pixel.

Yet the Kim Davis episode remains something of a smokescreen for those who advocate freedom of conscience. To them, the considerations and ramifications go well beyond discrimination alone. From this perspective, the much larger core issue is this: Does government have the right to compel conscience? Can an act of Congress, presidential executive order, Supreme Court ruling, or any other act of government force individuals, groups, corporations, or any other entity to follow dictates contrary to their own beliefs and/or mission statements? And if this is the case, is the government also empowered to compel religious organizations, even despite the First Amendment? Remember, there are legal ways around the Establishment Clause—declaring that a particular religious organization is not actually a church and therefore undeserving of First Amendment protection, for instance—so religious protection isn’t necessarily a given.

To some, the answer is easy: Yes! They’re discriminating! Get rid of the opposition! Make the playing field level for everyone! But let’s think about that response for a moment, while the small-l libertarian in me rears its ugly head. Two facts to consider: First, this is a barn door which, once opened, is tremendously difficult to shut again; and second, if the government has power to compel someone else’s conscience, beliefs, or faith practice, they also have power to compel yours. Given this type of power against religion or even mere moral/political belief, when the partisan winds shift—as they have been known to do—government could then use this power to legislate or act in favor of religion or moral/political belief. If government can compel a baker to create a cake or a wedding photographer to shoot pictures for a wedding despite contrary belief, what else can government do?

Some commentators have raised concerns about the Trump administration’s recently announced task force on religious liberty and whether this effort will result in the protection of ALL religions in America.

The government—especially under the control of an authoritarian traditional religious sympathizer or advocate—could also be able to, say, force a gay owner of a print shop to produce anti-gay signs for a Westboro Baptist protest. Or force orthodox Jewish or conservative Muslim deli owners to handle and sell pork products. Or force pacifist teachers to carry guns in their classrooms. Or force black athletes in any sport who are protesting continued racial injustice to stand for the national anthem (not to be confused with the various pro sports organizations’ prerogative to set their own rules, of course). Remember, too, the former Trump administration at one point had announced the creation of a “religious liberty task force,” which to be fair, actually didn’t appear to do much. But please keep in mind that a future administration that could well take religious causes and sympathies even more seriously could definitely use power like this to its advantage!

Under President Biden, the debate seems to have shifted to passage of The Equality Act, first proposed in 2019. Simply explained, the bill would ban sex-and-orientation-based discrimination. As of 2021, the House has approved the bill, but it faces an uncertain future in the Senate, where the GOP influence is stronger, and at last word it still remains unconsidered there. Several senators have further expressed reservations about the measure giving higher priority to banning discrimination than to protecting religious liberty. Some also seem to favor a lesser-known measure that offers legal protections for LGBT rights but also attempts to be stronger on defending religious liberty, The Fairness for All Act. The resulting debate will likely continue to play out throughout the remainder of 2021 and throughout the election season of 2022. This became especially likely as the Supreme Court revoked the controversial Roe v. Wade ruling in the summer of 2022, which also struck deeply. The full implications of this decision have yet to be explored, but the outrage was very, very real.

In any case, some remain profoundly skeptical about government’s ability or desire to protect all religions, as in the editorial cartoon on the previous page; the task force announced under the Trump administration had the reputation of favoring only particular interest groups. Extending freedom and fairness to all is a desirable proposition, but doing this without compelling conscience or infringing on religious belief is a thorny issue. It seems like a justifiable quick fix from one perspective, granted, but this approach also tends to breed resentment in the long run. Under the Obama administration, passing the “Obamacare” health care fix despite objections about its mandatory nature and other issues such as unfunded programs sparked anger, which was then revisited in any number of Trump administration tactics that overrode concerns about rights, ethics, human value, etc. So far, the Biden administration has been better about listening to public concerns than either predecessor, though far from perfect, and it seems entirely possible if not likely that some measures may yet again be pushed through despite objections based in questions of rights and conscience. In short, allowing the government— any government of any administration—the power to compel conscience in any way seems unwise at best and a recipe for disaster at worst. And let’s definitely not forget at any point that if conscience can be compelled in one direction, it can also be compelled in another.

Consider this carefully, especially in light of the Supreme Court June 2018 Masterpiece Cakeshop ruling . ( Background and some interesting on-the-right commentary here and here from the other side of the aisle.) Note that the highly conservative Christian baker who refused to bake the infamous cake also would not have made a Halloween or anti-America cake for the same reason—he doesn’t believe in either of those as well. But since the Colorado Civil Rights Commission declared that he had no right to decline service on those grounds, he stopped making wedding cakes altogether rather than be forced to do something he felt morally opposed to doing. Did government have the right to limit or essentially deny his business over a conflict of conscience? This may seem like an easy answer for some people out there, but we always need to remember that politics operates on a pendulum. As in our discussion above, it may be swinging the way you favor one time, but it could also reverse course and come back to haunt you the next. We always need to be careful about the laws that are passed, legal precedents that are set, and powers that are given to government. They can be used against us every bit as much as for us!

In any case, this is an ongoing question. Justice Anthony Kennedy, as in Obergefell, negotiated a difficult balance between freedom of conscience and protection from discrimination, allowing for both. Though the Masterpiece ruling was specific to the Colorado agency and did not outline a lasting principle or precedent, it seems the right call to try to protect freedom of conscience and LGBT accommodation alike. As the links above indicate, experts agree this is a tough balance—and one that will require understanding and cooperation from all involved rather than anyone taking a “my way or the highway” approach—but one that is necessary, nonetheless. I mentioned earlier that my stance remains human rights for LGBT people AND liberty of conscience for those who have conscientious objections. Please note: If we are to abide by Justice Kennedy and the Supreme Court via the Obergefell ruling, upholding both of those rights is actually the precise stance Obergefell endorses! So I see it as only reasonable to maintain it. This is especially true as current debates occur over The Equality Act, which has been criticized by some for the possibility that it may infringe upon “religious freedom.” Whether this will or won’t happen remains to be seen.

In connection with that, just a few words about discrimination. Most of us rational, fair-minded people oppose discrimination as the evil it is. We don’t want religious individuals or groups handed blank checks to discriminate against others. Remember, though, that there are ranges and types of discrimination. Let’s call one of those types incidental discrimination. This is the type of discrimination one person might have towards another, just because, such as a business owner might have towards a customer. Maybe there’s something about belief, appearance, life circumstances, or just flat-out the mood one person might be in that day that leads to discrimination—presumably most often the owner against the customer.

True, this is unfortunate, unwise, regrettable, inappropriate, and unwanted in a civil society. Still, most often, cases like these may be best solved by talking them out between people and letting them take their course. Involving the government in incidental discrimination is heavy-handed, creates ill will, and evades the natural free-market solution of the customer simply taking business elsewhere. The offending business owner is penalized anyway by not only losing the customer’s business, but also by getting a reputation for discrimination, cutting into the owner’s business if his other customers are rational and fair-minded. Who wants to support that, right? Awful as it is, it seems forced and authoritarian to involve government in cases of incidental discrimination. Perhaps it’s better to try to work it out or let individuals of this type put themselves out of business.

However, another type is systemic discrimination. This is much different, because instead of a single owner having an issue, it’s a group of owners getting together and deciding they’re going to agree on a discriminatory policy. So when the customer enters the first store, the answer is a discriminatory no. And also at the second. And third. Fourth. Tenth. Twentieth, if the customer persists that long. There is no free-market solution in such cases—instead, the business owners have rigged the market in their favor. The customer has no recourse—except to go to a governmental agency or entity to complain. In such a case, the government as well as society as a whole must step in and solve the problem. This was precisely the issue with discrimination in the South during segregation, as white business owners collectively agreed to deny service to African-Americans. The discrimination was systemic and had to be settled by the government. There was no other reasonable recourse.

In the battle between religion and LGBT rights, some organizations have declared the winner as they see it: No battle at all. Finding ways to accommodate and include both freedom of conscience and LGBT rights is a difficult long-term project, but one such groups have found well worth engaging. Image from Wikimedia.

Back to the Masterpiece case. The Supreme Court ruling doesn’t directly indicate it, but it seems probable that the justices considered the discrimination in that case relatively incidental. Hence the reason they didn’t rule more broadly on that particular case—there was nothing to build a legal precedent from. Let the Cakeshop guy have the freedom to choose to get a bad reputation and ultimately hurt his own business, if that’s the way it’s going to be. But systemic discrimination would most definitely require intervention and social change. Systemic discrimination that exists against LGBT individuals should and must be addressed in that way, absolutely granted. That is one reason government exists.

The long and short: American freedoms depend upon government creating an environment that combats systemic discrimination AND protects religious practice and belief in general—that is, to the extent that such practices and beliefs do not violate other laws or fundamental human rights. No truly responsible religious organization insists on the “right” to commit crimes or atrocities—and ever since Reynolds v. United States in 1878 , religious belief cannot be legally invoked to justify behavior that has been codified as criminal. (As an aside, this is also why fears of Muslims somehow imposing shari’a law on Americans are a bit overblown, to say the least. This would require an overthrow of the existing legal system to implement a particularly harsh form of shari’a law that condones if not requires behavior currently defined as illegal. If all that were to happen, we’d have MUCH bigger problems to worry about anyway.)

In any case, in a truly tolerant society, there must be allowances made for differences of opinion, belief, and practice. To the extent that such differences do not cause actual harm and/or violate laws, they should be tolerated. Moreover, the worst harm we have done to “freedom of religion” is to make it a political issue. Both Republicans and Democrats misapply this core principle, one expert says, I would say correctly. True “religious freedom” requires understanding and working with each other, and that’s not going to be easy. Not at all.

In a modern law-abiding society that values human rights and dignity, we can do better than resorting to force—legal or otherwise—to try to make each other cooperate. This only results in resentment and anger anyway. Attaining genuine cooperation through mutual understanding is a much better and more effective solution to the freedom of conscience dilemma. Unfortunately, it also takes more work and attempts to build true understanding between very different groups of people. But if we want a lasting solution rather than a “quick fix” that turns out to do more harm than good, we’d be well-advised to take the more effective route of trying to attain true understanding—even if it is a much longer-term project.

So with all that said, let’s wrap things up. It has certainly been my experience that we can have our religious convictions—or also our sincerely held non-religious views!—about what is and isn't right, and we should certainly be willing to stand up for those convictions. However, that doesn't mean we should abandon our understanding, kindness, and compassion—and it may well be that our understanding, kindness, and compassion may be among the most important principles of all worth standing up for and defending. Without those qualities, what kind of civil society do we have? Or do we even have a civil society at all without them?

The true test of any civilized society is how its members handle their most profound disagreements. Employing kindness and compassion in civilized dialogue as we work out problems—even issues with gulfs as wide as these—is far preferable to cultural warfare. Marriage, family and religion are entering new territory that the United States has never explored. Religion and family can still work together to ensure freedom, justice, and civility. But this will take work and mutual understanding. That is the project that our modern context now requires of us.

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